United States V. , 77 F.3d 493 ( 1996 )

77 F.3d 493

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Defendant-Appellant.

No. 94-1584.

United States Court of Appeals, Tenth Circuit.

Feb. 15, 1996.

Before PORFILIO, HENRY and BRISCOE, Circuit Judges.

1

ORDER AND JUDGMENT*

HENRY

2

Following his entry of a guilty plea to one count of possession with intent to distribute and distribution of more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii), and 18 U.S.C. § 2, defendant-appellant Bernardino V. Lopez-Diego was sentenced to a term of sixty months imprisonment. He appeals that sentence and the district court's denial of his motion under Federal Rules of Criminal Procedure Rule 35(c) to correct sentence. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm.1

3

Mr. Lopez-Diego argues that the district court erred: (1) in failing to apply to his sentence the "safety valve" provision of 18 U.S.C. § 3553(f)(1-5) and U.S.S.G. § 5C1.2; (2) in failing to apply to his sentence the additional point reduction for acceptance of responsibility available under U.S.S.G. § 3E1.1(b); and (3) in denying his Rule 35(c) motion to correct his sentence. Because the appellant did not raise these issues at sentencing, the first two arguments are subject to a plain error standard of review. United States v. Orozco-Rodriguez, 60 F.3d 705, 707 (10th Cir.1995). We find no plain error in the court's decisions not to apply either the safety valve provision or the additional point reduction for acceptance of responsibility. With respect to the third argument, Rule 35(c) permits the sentencing court, within seven days after the imposition of sentence, to "correct a sentence that was imposed as a result of arithmetical, technical, or other clear error." Fed.R.Crim.P. 35(c). We find that the sentence in this case was not imposed as a result of any error and affirm the district court's denial of the Rule 35(c) motion.

4

Because we find no merit in the appellant's arguments and because they were adequately reviewed by the district court, we AFFIRM for substantially the same reasons cited by that court.

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3

1

After examining the briefs and appellate record, this panel has determined that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument